TaxTMI 
TaxTMI 
2013 (10) TMI 567
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....rge of the EOU. Section 3(1) of the Central Excise Act levies and collects the Central Excise duty on goods produced or manufactured in India. For goods manufactured by 100% EOU and brought to another place in India, rate of excise duty is applicable as per ClauseII of the proviso to section 3(1) of the Central Excise Act. The company has been paying the excise duty on the sum total of duties of customs and also education cess as well as secondary and higher education cess on customs duty leviable on similar medicines imported into India. 2. Dispute was raised as calculations of excise duties were made leviable on DTA clearances made by EOU on the ground that the education cess as well as secondary and higher education cess were leviable on sum total of custom duties. 3. Customs Excise & Service Tax Appellate Tribunal ("CESTAT" for short) considered the similar dispute in case of Sarla Performance Fibers Ltd. vs. Commissioner of C.Ex. Vapi reported in 2010 (253) E.L.T. 203(TriAhmd.) and held that the method suggested by the Revenue for levying above cess for second or third time was incorrect and not in accordance with the scheme of section 3 of the Central Excise Act. 4. The pe....
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.... from petitioner company on DTA clearances raising the very same issue have been issued and show cause notice dated 22.1.2013 is issued after this Court struck down the adjudication order passed by the second respondent in the petitioner's previous petition i.e. Special Civil Application No. 12686 of 2012 dated 6.12.2012. 9. Therefore challenging such arbitrary actions of the respondents, present petition is preferred seeking following reliefs: "( A) That Your Lordships may be pleased to issue a Writ of Prohibition or any other appropriate writ, direction or order, completely and permanently prohibiting the respondents, their servants and agents from taking any action against the Petitioner Company pursuant to Show Cause Notices F.Nos.V.30/374/ D/12 dated 21.8.2012 and V.30/34/ D/2013 dated 22.1.2013 (Annexure" G") and thereby completely and permanently prohibiting the respondents, their servants and agents from recovering and collecting Education Cess as well as Secondary and Higher Education Cess on the Excise duty calculated as an amount equal to the Custom duties leviable on similar goods if imported in India; (B) That Your Lordships may be pleased to issue a Wirt of Mandamu....
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....ccording to the adjudicating authority even after arriving at the measure of Custom Duty for working out Central Excise duty payable, the Education Cess once again requires to be levied. However, the Tribunal has in no uncertain terms held in Sarla Performance Fibers Ltd. vs. Commissioner of C.Ex. Vapi reported in 2010 (253) E.L.T. 203(TriAhmd.), that once the measure of Customs Duty equivalent to Central Excise Duty leviable on the light goods has been worked out, there could not arise any question of levying Education Cess separately for the clearances made by 100% EOU to DTA. 17. As can be noted that the petitioner has been paying Excise Duty on the sum total of duties of customs and Education Cess as well as secondary and higher Education Cess on the basic customs duty leviable on similar medicines imported into India. 18. When such issue was raised against the petitioner by the Department, the adjudicating authority had ruled against the petitioner, CESTAT held in favour of the petitioner by an order dated 21.6.2010 following the judgment of Sarla Performance Fibers Ltd. vs. Commissioner of C.Ex. Vapi (Supra). 19. Various appeals as mentioned hereinabove were challenged bef....
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....nly if it is found that such order is erroneous and prejudicial to the interest of the Revenue. Such rigors, however, are not applicable in so far as the Department's right to appeal against the order of the Adjudicating Authority is concerned under the Central Excise Act, 1944. 8. The Adjudicating Officer acts as a quasijudicial authority. He is bound by the law of precedent and binding effect of the order passed by the higher authority or Tribunal of superior jurisdiction. If his order is thought to be erroneous by the Department, the Department can as well prefer appeal in terms of the statutory provisions contained in the Central Excise Act, 1944. 9. Counsel for the petitioners brought to our notice the decision of the Apex Court in the case of Union of India vs. Kamlakshi Finance Corporation Ltd. reported in 1991 (55) E.L.T. 433 (S.C.) in which while approving the criticism of the High Court of the Revenue Authorities not following the binding precedent, the Apex Court observed that: " 6... It cannot be too vehemently emphasized that it is of utmost importance that, in disposing of the quasijudicial issues before them, revenue officers are bound by the decisions of the appe....
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....ctor or Collector refusing to follow the order of the Appellate Collector or the Appellate Tribunal, as the case may be, even where he may have some reservations on its correctness. He has to follow the order of the higher appellate authority. This may instantly cause some prejudice to the Revenue but the remedy is also in the hands of the same officer. He has only to bring the matter to the notice of the Board or the Collector so as to enable appropriate proceedings being taken under S.35E(1) or (2) to keep the interests of the department alive. If the officer's view is the correct one, it will no doubt be finally upheld and the Revenue will get the duty, though after some delay which such procedure would entail." 10. Under the circumstances, we have no hesitation in striking down the impugned order dated 13.7.2012. We clarify that this should not be seen as any indication of our view of upholding the view of the Tribunal contained in its decision dated 21.6.2010. It would be open for the Department to call in question such a view in appropriate proceedings as in the manner permissible to the Department. Petition is disposed of accordingly." 21. It needs to be noted with strong ....
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....eld. 21. All Tax Appeals are dismissed." 23. Instruction dated 17.8.2011 of the Central Board of Excise and Customs ("CBEC" for short), in a move to reduce Government litigation, provides for monitory limits for filing appeals by the Department before the CESTAT/High Court and Supreme Court, which is Rs.25 lakhs before the Supreme Court. This instruction, however, provides that the adverse judgments relating to the constitutional validity of the provision of the Act or Rule is to be decided irrespective of the amount involved or where the Notification/Instruction/Order or Circular is held illegal or ultra vires. 25. Thereafter, as mentioned hereinabove in Special Civil Application No. 12686 of 2012, once again order of adjudicating authority was struck down by a clarification that it would not be seen as a stamp on the part of the High Court of upholding the view of the Tribunal contained in its decision dated 21.6.2010 and it would be open for the Department to call in question such a view in appropriate proceedings as permissible under the law. While so holding the adjudicating officer was reminded that he acts a quasijudicial authority and is bound by the law of precedence an....